Beware of Advertising Your Wares

Medico-legal Adviser, Helen Baxter, illustrates why it’s important to be familiar with the Medical Board of Australia’s guidelines for advertising of medical services.¹

Case history

Dr Cheeky was an obstetrician who advertised his services via his website where be promoted being available 24/7, and that he had low rates of pregnancy complications and the lowest rates of 2nd and 3rd degree tears in town. He also stated that he used a special suture closing technique on any caesarean wounds which achieved the “best cosmetic outcome in Australia”.

After finding out she required a caesarean section, Mrs Swimwear Model engaged Dr Cheeky to deliver her first baby because she wished to have the most minimal scar possible, post-surgery. She scoured Dr Cheeky’s website and decided to engage him because of the before and after photos he showcased as well as the assurances of other women on the site that he was the best and that the scar would “fade away” and be “hardly noticeable”.

After an uncomplicated caesarean section Mrs Swimwear Model’s incision did not heal and she was left with a large keloid scar. Mrs Swimwear Model complained to Dr Cheeky alleging she had been unable to work since the pregnancy due to the scar, and had suffered significant personal and professional consequences.

Discussion

The Medical Board of Australia guidelines for adertising of medical services¹ prescribe how to advertise regulated health services. For example, a medical practitioner must not “create an unreasonable expectation of beneficial treatment”, “use testimonials or purported testimonials about the service or business” nor offer “inducement to attract a person… unless the advertisement also sets out the terms and conditions of the offer.”

You may think these guidelines won’t apply to or affect your practice as you aren’t touting for work on Hollywood Boulevard but the guidelines are applicable to all registered medical practitioners.

The guidelines state your advertisement (in whatever format) may contain:

• factual, clear statement of your services/products
• contact details
• gender of practitioners
• office hours
• a warning statement (in similar font to the main text) relating to surgical or invasive procedures which provides:

Any surgical or invasive procedure carries risks. Before proceeding, you should seek a second opinion from an appropriately qualified health practitioner.

• non-enhanced photos or drawings of you in your office
• advice on wheelchair access
• statement of languages spoken
• statement about fees charged, bulk billing arrangements and instalment fees, statement of qualifications/specialist registration and area of specialty/teaching positions held or formerly held/hospital affiliations or accreditation
• statement of the safety and quality accreditation of the practice
• list of publications
• statements encouraging preventative or corrective care (these should be evidence based).

The guidelines also state that advertising of services must not:

• create or be likely to create unwarranted and unrealistic expectations about effectiveness
• encourage inappropriate, unnecessary or excessive use of health services; for example “achieve the look you want” and “looking better and feeling more confident”
• include misleading use of emphasis, comparison, contrast or omissio
• use testimonials
• compare health professionals in the absence of evidence
• claim services are better, as safe or safer than other health professionals
• lead to, or be likely to lead to, inappropriate self-diagnosis or self-treatment
• fail to disclose risks associated and omit warning statements (see guidelines for complete list).

Specifically, the guidelines state that practitioners should cautiously use graphic or visual representations such as client photographs, and all photographs must be of real patients who have undergone the procedure; but they note a word of caution “use of ‘before and after’ photographs in advertising of regulated health services has a significant potential to be misleading or deceptive, to convey to a member of the public inappropriately high expectations…” As outlined above, the warning statement for invasive procedures in any advertisement is mandatory.

In relation to financial matters, the guidelines suggest that it is difficult to provide prices due to the personal nature of services, and the significant number of variables. If price information is included, you should ensure clarity and that all fees are identifiable, together with any conditions which attach to vary the advertised price or fee disclosed.

Medical practitioners must also comply with Commonwealth, state and territory consumer protection legislation. The Competition and Consumer Act 2010 (Cth)permits advertising unless it is misleading and deceptive, or is likely to mislead and deceive. A breach of this legislation can lead to prosecution by the Australian Competition and Consumer Commission and penalties include significant fines for any breaches.

By Helen Baxter

Medico-legal Adviser

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• 1 Guidelines for advertising of regulated health services. Available at www.medicalboard.gov.au

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